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COMMONWEALTH EX REL. v. CINDY MILLER (05/25/84)

filed: May 25, 1984.

COMMONWEALTH EX REL., ROBERT D. MILLER AND NELLIE M. MILLER, HIS WIFE,
v.
CINDY MILLER, APPELLANT



No. 972 Pittsburgh, 1983, Appeal from the Order entered June 29, 1983 in the Court of Common Pleas of Fayettee County, Civil Division, No. 1574 of 1982, G.D.

COUNSEL

David B. Reiss, Connellsville, for appellant.

Murray I. Horewitz, Connellsville, for appellees.

Wieand, Tamilia and Popovich, JJ. Popovich, J., concurred in the result.

Author: Tamilia

[ 329 Pa. Super. Page 250]

This is an appeal from an Order entered by the Court of Common Pleas of Fayette County awarding visitation rights to appellees, the paternal grandparents of Amanda Miller, appellant's daughter. Appellant contends that due to the hostility, tension and conflict existing in her relationship with the appellees it would be in the best interests and welfare of the child for the court to deny visitation by the appellees. We disagree, and for the reasons stated below, affirm the Order awarding visitation to the appellees.

This case originated when a petition for visitation of Amanda Miller, born February 26, 1981, was filed by Robert D. Miller and Nellie M. Miller, his wife, the appellees. On January 6, 1983, a hearing on this petition was held before the Honorable Conrad B. Capuzzi of the Court of Common Pleas of Fayette County. Testimony at this hearing revealed that the child, Amanda Miller, was born of the marriage between Alan Miller and Cindy Miller, the appellant, and that this couple had lived next door to the appellees. Testimony further disclosed that Alan Miller was involved in a fatal accident on August 18, 1981. Prior to Alan Miller's death, the relations between appellant and her in-laws, the appellees, were stable as the parties frequently saw each other when the appellees visited their grandchild. However, shortly after the death of Alan Miller, the relationship between the parties deteriorated due to disagreements regarding which lawyer the appellant should retain to handle the civil lawsuit resulting from her husband's death, as well as a disagreement over appellant's desire to buy a gravesite next to her deceased husband's gravesite. The parties also bickered over certain items of personal property belonging to the deceased, which appellant wanted returned to her.

[ 329 Pa. Super. Page 251]

Since August 18, 1981, visits between the appellees and their grandchild were few and the ones which occurred were strained. Subsequent to February 26, 1982, the only visit between the child and the appellees was a pre-hearing visit ordered by Judge Capuzzi. This pre-hearing visit was observed by Margaret McGarrity, a caseworker representing Fayette County Children and Youth Services, who concluded that while the relations between the parties remained strained, the interaction between the grandparents and the child was positive.

At the conclusion of the hearing on January 6, 1983, a tentative agreement was reached between the parties for visitation by the grandparents of Amanda Miller on a regular basis. On March 31, 1983, however, a petition for rehearing was filed by the appellees alleging that appellant, while initially complying with the visitation agreement, refused to continue to allow the appellees visitation with Amanda.

On May 19, 1983, a hearing was held before the Honorable Conrad B. Capuzzi pursuant to the petition for rehearing. While no testimony was offered, statements by counsel in the presence of all parties, revealed that the visitation between appellees and Amanda went well for the first three weeks, but then discontinued.

Counsel for appellant contended that visitation had ceased because appellant disapproved of certain things which the appellees permitted the child to do during the visits.*fn1 It was also alleged that the appellees attempted to extend their visits beyond the time period set by the hearing judge and did not permit appellant to comfort her child during such visits. Therefore, appellant urged the court to deny any ...


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